#Court #RuleByLaw #Regime #Justice
Department of Justice Cites Unenacted #Article23 in Hong Kong Court
Founder of Apple Daily and Next Magazine, #JimmyLai Chee-ying, has been remanded in custody in Hong Kong since the end of 2020 on suspicion of "colluding with foreign forces and fraud".
On February 1, 2020 the Court of Final Appeal in Hong Kong heard an appeal against the decision to release him on a HK$10 million cash bail, pending trial over national security charges.
The appeal was heard before five hand-picked National Security judges, including the new Chief Justice #AndrewCheung Kui-nung, permanent justices Roberto Ribeiro and Joseph Fok, and non-permanent local judges Patrick Chan Siu-oi and Frank Stock.
Representative of the Department of Justice (#DoJ), Deputy Director of Public Prosecutions Anthony Chau Tin-hang attempted to put meaning to “acts that endanger national security”. Chau stated that such acts are not limited to offences under the National Security Act, but also include local offences and any actions that would endanger national security.
Non-Permanent Judge Chan asked Chau to give examples of “acts endangering national security” which are not criminalised.
Chau quoted some behaviors covered in Basic Law #Article23, referring to the prohibition of political activities by foreign political organizations in Hong Kong, or the establishment of links between local and foreign political organizations. Article 23, however, has yet to be enacted.
Non-permanent local judge Patrick Chan Siu-oi questioned, “That is to say these are not a crime.” Chau agreed. Chan immediately responded, “Then why should we be bothered?”
Permanent judge Roberto Ribeiro pointed out that the purpose of the #NationalSecurityLaw is to prevent crimes against national security, and no one questions the importance of national security. He carried on saying that it would be “odd” for judges to be concerned with acts that are not yet criminalised.
Ribeiro elaborated that "I can't think of any behavior that endangers national security but won't be contravening the law and the arrest.” He asked the DoJ representative to supplement with examples.
In response, Anthony Chau cited actus reus as a possible offence letting alone the criminal intent and thus they do not constitute an act of complete crime. Ribeiro asked the government's prosecutor to explain how bail judges could reach a decision.
Chief judge Andrew Cheung Kui-nung also casted doubt in the prosecution's logic. He said, “a citizen can commit an act that violats the National Security Law, but the person may not get arrested. However, a national security suspect, committing the same act, would be detained in custody?”
Cheung remarked, “isn’t it odd?” The DOJ representative responded that this is up to the Judge to decide. He clarified that he is referring to "an act" in relation to the suspected charges of the National Security suspect, not "any act".
The prosecutor also mentioned that the National Security Law will not supersede the "presumption of innocence" and it is also in accordance with the Human Rights Act.
When speaking on the Rights of Freedom, the prosecutor insisted that the defence shall not rely on cases of the European Court on Human Rights, reiterating that The European Convention on Human Rights cannot be applied directly to Hong Kong.
Source: Apple Daily, #Feb2
https://hk.appledaily.com/local/20210201/6KXCOOIP6VAOZK4SRCNQV5C72E/
Department of Justice Cites Unenacted #Article23 in Hong Kong Court
Founder of Apple Daily and Next Magazine, #JimmyLai Chee-ying, has been remanded in custody in Hong Kong since the end of 2020 on suspicion of "colluding with foreign forces and fraud".
On February 1, 2020 the Court of Final Appeal in Hong Kong heard an appeal against the decision to release him on a HK$10 million cash bail, pending trial over national security charges.
The appeal was heard before five hand-picked National Security judges, including the new Chief Justice #AndrewCheung Kui-nung, permanent justices Roberto Ribeiro and Joseph Fok, and non-permanent local judges Patrick Chan Siu-oi and Frank Stock.
Representative of the Department of Justice (#DoJ), Deputy Director of Public Prosecutions Anthony Chau Tin-hang attempted to put meaning to “acts that endanger national security”. Chau stated that such acts are not limited to offences under the National Security Act, but also include local offences and any actions that would endanger national security.
Non-Permanent Judge Chan asked Chau to give examples of “acts endangering national security” which are not criminalised.
Chau quoted some behaviors covered in Basic Law #Article23, referring to the prohibition of political activities by foreign political organizations in Hong Kong, or the establishment of links between local and foreign political organizations. Article 23, however, has yet to be enacted.
Non-permanent local judge Patrick Chan Siu-oi questioned, “That is to say these are not a crime.” Chau agreed. Chan immediately responded, “Then why should we be bothered?”
Permanent judge Roberto Ribeiro pointed out that the purpose of the #NationalSecurityLaw is to prevent crimes against national security, and no one questions the importance of national security. He carried on saying that it would be “odd” for judges to be concerned with acts that are not yet criminalised.
Ribeiro elaborated that "I can't think of any behavior that endangers national security but won't be contravening the law and the arrest.” He asked the DoJ representative to supplement with examples.
In response, Anthony Chau cited actus reus as a possible offence letting alone the criminal intent and thus they do not constitute an act of complete crime. Ribeiro asked the government's prosecutor to explain how bail judges could reach a decision.
Chief judge Andrew Cheung Kui-nung also casted doubt in the prosecution's logic. He said, “a citizen can commit an act that violats the National Security Law, but the person may not get arrested. However, a national security suspect, committing the same act, would be detained in custody?”
Cheung remarked, “isn’t it odd?” The DOJ representative responded that this is up to the Judge to decide. He clarified that he is referring to "an act" in relation to the suspected charges of the National Security suspect, not "any act".
The prosecutor also mentioned that the National Security Law will not supersede the "presumption of innocence" and it is also in accordance with the Human Rights Act.
When speaking on the Rights of Freedom, the prosecutor insisted that the defence shall not rely on cases of the European Court on Human Rights, reiterating that The European Convention on Human Rights cannot be applied directly to Hong Kong.
Source: Apple Daily, #Feb2
https://hk.appledaily.com/local/20210201/6KXCOOIP6VAOZK4SRCNQV5C72E/